EU Law Enforcement Capacities in the Fight Against Terrorism, Organised Crime and Corruption

The development of EU policy regarding security measures became visible in the European Arrest Warrant, the 2009 Treaty of Lisbon and the case-law of the ECJ. It were the cases of Kadi and Al Barakaat International that provoked consequences for the EU’s constitutional basis for terrorism and security measures. The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice. The principle of recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union; the implementation of this principle implies safeguards such as the rights of suspects and common minimum standards necessary to facilitate the application of the principle. Although EU Member States are parties to the ECHR experience has shown that this in itself will not do to provide a sufficient degree of trust in the criminal systems of other Member States. Article 82 of the Treaty of the Functioning of the European Union provides for the establishment of minimum rule applicable in the Member States as to facilitate recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. At the same time, the Treaty provides for a mechanism of enforcement of EU measures related to terrorism. In order to combat the increase in serious crimes, such as terrorism and crimes such as trafficking in human beings, the EU has adopted measures for the collection and exchange of personal data between law enforcement and other authorities. To that purpose in 2011 a proposal for a directive has been issued regarding the use of Passenger Name Record data for the prevention detection, investigation and prosecution of terrorist offence and serious crime. These legal capacities of the European Union should be used in accordance with “the rights of individuals in criminal procedure” of Article 82 (2) TFEU. Common criminal institutions, such as Europol, and common criminal laws and procedures should lead to effective measures in the fight against terrorism, organized crime and corruption. From the 2013 Kadi judgment of the ECJ it becomes clear that the law enforcement mechanism of the EU has become a system functioning independently from the UN institutions in respect of terrorism and cross-bordering crime.